Court to hear dispute over redistricting power: In Plain English

Posted Mon, March 2nd, 2015 7:17 am by Amy Howe

Arizona voters were fed up. After each census, states have to draw new boundaries to elect members of the House of Representatives in Washington. Until 2000, the state legislature took on this job, as it does in many other states. But voters weren’t happy with the results: in Arizona, as elsewhere, it was common for the political party that controlled the state legislature to use its power to its advantage in redistricting, by drawing districts to maximize the opportunities for its members to win election and to ensure that, once in office, those seats were safe. So in 2000, Arizona voters passed an amendment to the state constitution that would turn control of redistricting over to an independent commission. Three years ago, though, the state legislature filed a lawsuit in federal court, challenging the voters’ transfer of redistricting power to the commission. Let’s talk about today’s argument in Arizona State Legislature v. Arizona Independent Redistricting Commission in Plain English.

The Elections Clause of the U.S. Constitution provides that the “Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof.” In Arizona, the legislature and members of the public can make recommendations to the redistricting commission, but the commission doesn’t have to do anything more than “consider” those recommendations. The heart of the lawsuit now before the Court, then, is the Arizona legislature’s complaint that, by depriving it of any substantive role in the redistricting process, the state’s creation of the independent commission violates the Constitution.

Before the Court can consider that argument, though, it has to answer a threshold question: whether the Arizona legislature has a right to sue at all – a legal concept known as “standing.” To have such a right, the legislature has to have been injured somehow by the commission’s control over redistricting. The legislature maintains that, because the voter initiative that created the commission takes the power to regulate congressional elections away from the legislature and gives it to the commission, the legislature has therefore suffered the kind of injury that allows it to sue. The commission and its supporters counter that because the legislature is part of Arizona itself, it can’t argue with how the state has opted to divide power up among its different institutions. They also emphasize that the legislature hasn’t actually been injured yet: it could create its own, competing redistricting plan, which Arizona’s secretary of state could implement, and so it can’t contend that it has been cut out of the process. (The legislature responds that it hasn’t tried to offer its own plan because it isn’t allowed to come up with one.)

If the Court agrees that the legislature has a right to sue, the Justices will then move on to consider the substance of the legislature’s challenge: what does the Constitution’s reference in the Elections Clause to the “Legislature” mean? The legislature argues that the word “Legislature” means exactly what it says, and therefore refers only to the official lawmaking body itself. The commission, on the other hand, interprets the term as extending to the wider power to make laws, including the people’s power to make laws – which is exactly what the voters of Arizona were doing when they passed the initiative.

But even if the Founding Fathers meant for the word “Legislature” in the Elections Clause to refer to just to the institution, rather than the power to make laws, the commission has a fallback argument: Congress – which under a separate provision of the Elections Clause has the authority to “make or alter” the rules enacted by a state’s legislature – enacted a law that authorizes redistricting based on the use of the power to make laws generally, rather than limiting it to the “Legislature.” But the Arizona legislature characterizes the law as something that Congress passed to ensure that, if a state’s redistricting process is deadlocked, the state can still hold elections and send representatives to Washington.

Only one other state uses a commission similar to Arizona’s for redistricting. But it’s a big one – California – and the commission there has been widely regarded as successful in increasing competition in elections and reducing partisanship. More generally, supporters of the commission warn the Court that, if voters aren’t allowed to hand responsibility for redistricting over to independent commissions like the ones in Arizona and California, there will be no real way to combat political gerrymandering, which results in “partisanship and dysfunction” in Congress. And a ruling for the legislature, they caution, could also spell doom for other voter initiatives in other states – dealing, for example, with voter identification laws or changes to the primary process.

Download our Apple or Android App

On Friday, April 3, Justice Stephen Breyer spoke to students at the United Nations International School in New York City. The justice gave his talk remotely via video call, while self-quarantining at home in Massachusetts with his wife and daughter.